One of the ways a patent can be questioned outside of court is by filing an "ex parte" reexamination request at the US Patent and Trademark Office. That's what an anonymous third-party did to Apple's patent No. 7,479,949, which lists Steve Jobs as its lead inventor and covers different kinds of scrolling within a document.

Last December, that patent received an initial rejection from the Patent Office. But now the reexamination has concluded, and the patent has survived intact.

In a document explaining his decision, the examiner decided that the prior art (an earlier patent) cited in the request includes "a translation command [that] does not include the determination of such a command based on an angle of initial movement of the finger contact with respect to the touch screen display."

The older patent (called the Wakai patent) can't distinguish "between [a] one-dimensional vertical screen scrolling command and a two-dimensional screen translation command based on an initial angle of movement," wrote the examiner.

The document is written in very specific technical language. However, even for those not versed in the details of early smartphone touchscreens, it's an example of how patents can be granted on relatively tiny changes to prior technology.

Patent office records show the reexamination was concluded in Apple's favor on September 4. The news was first reported yesterday on Florian Mueller's blog, FOSS Patents.

FOSS Patents discusses the affirmation of the "Steve Jobs patent" in breathless tones, saying the confirmation of the patent is "a potential threat" to other Android device makers, a "massive setback [for] Samsung and Google," and a "major strategic win" for Apple. It's "inevitable" that Apple will soon be receiving royalties from Android makers, he states.

Mueller's "the end is nigh" analysis was re-reported, with similar anti-Android tones and without the actual PTO document, on MacRumors, Apple Insider, and other Apple blogs.

However, it's really not clear why this proceeding should be seen as such a watershed in the wide-ranging patent war between Apple and its two Android-making competitors. While it's certainly good for Apple to not lose a patent that it has asserted in two major legal actions, this essentially maintains the status quo. Since this is an "ex parte" reexamination, both Samsung and Motorola are absolutely free to use the same arguments used here in later legal proceedings, if they so choose.

Samsung was found to infringe this patent in an ITC case that resulted in an exclusion order, but it only affected older phones that aren't very relevant to Samsung's bottom line. The US trade representative even noted that Samsung had already worked around many of the asserted patent claims in that case before authorizing the exclusion order. This patent was also used against Motorola in federal court in a case that was thrown out by Judge Richard Posner before trial but is now on appeal.

This is something that really needed the combined efforts of 24 inventors (count them!).

Oh man, software patents are depressing.

So you are saying if you work in a team or independently develop something that contributes to the cause, you DO NOT wish to be named and noted as participating and contributing.

Yes, an egomaniac Super Steve would have said, "You're all my minions, and whatever IP you create is MY IP, and I shall patent that..."That evolution and contribution are part of any invention these days, get real, get an education and learn to read more widely,

Both decide what they want to say and then simply pick and choose from the facts to support their case. The facts do not form their opinions -- their opinions are set in stone. The facts are selectively chosen to fit whatever narrative they want to tell.

You can ignore either or take both with a huge grain of salt whenever you read their analysis.

Groklaw seemed pretty dedicated — two of its five principles were dedicated to — promoting OSS. This was very helpful in the SCO case, which was pretty clearly an attempt to wrestle back public domain software so that a single company could charge for it.

It has morphed horribly since. Given Google's proclamation that AOSP would be OSS, any IP issues surrounding Google were advocated in favor of Google. For instance, when the issue of injunctions against SEP holdouts was raised, Groklaw adamantly insisted it was necessary to have injunctions as a solution to … well, as a counter-attack by Android implementors. Never mind that injunctions for SEPs were a major escalation of the Digital Wars that'd been going on for a couple of decades, and that OSS advocates generally were decrying abusive patent assertions in all other ways; no weapon that'd keep Microsoft or Apple from asserting IP was too dangerous.

So I think your call on Groklaw was about right. The Müller one, not so much, because he often finds parties on the opposite side of his position, and has pretty much laid out his brand preferences as distinct from his principles.

He has pretty much advocated the line that all OSS software needs to be not just open source, but open origination; i.e., OSS should not include actual legal IP from others. This has led him to be favored by Oracle and Microsoft (since that matches their official positions) and by others of us who more-or-less favor continuation of the explicit US standards of IP: to receive a patent, an invention must not have been first accomplished by others, or obvious from others' work; it must be unique, etc., and that the grant of a temporary monopoly means exactly that: the Little Red Hen gets to choose what to do with the wheat that she planted, tended, harvested and ground into flour. Should the monopoly cover fewer than 20 years? I'd say that in today's economy, the smart answer would be that a lesser period would adequately reflect the compensation due a particular set of research. But we will NOT have companies spend years of time, and hundreds of millions of dollars with no guarantee of success, without some significant payoff opportunity. A lot of our country's original work in radio, semiconductors, computers, the internet was sponsored by the government, which doesn't have to get a direct payback but if we want private firms in the R&D business, we can't cut the profit opportunity out from under it.

The broad outlines of these standards survived a major rewrite of US patent law 2 years ago, but the injunctive power of SEPs took a major hit in January of this year, when the US DOJ and USPTO wrote new policy insisting that before an injunction be made against a SEP holdout, the court would have to determine independently of the parties, that a fair, clean (all cash) rate was offered and rejected. The new wrinkle is that the court itself must find a reasonable rate, not relying on how the patent-holder had struck deals with other consortium members (who, because they themselves have the incentive to make all patents for a standard look very valuable, would strike a small-cash, big IP deal) or other assessments such as Apple's expert witness provided. This is the actual mechanism that was used in Motorola v Microsoft and the world is already a better place for it (as long as you're not Motorola, and no longer can use a ridiculous value claim about a trivial h.264 patent to try to derail Microsoft's charges against it).

Obviously there are winners and losers in these battles, but I sure wish I saw more practical discussion about the principles of IP in place of the tribal loyalty and bashing that we get as our diet at Ars these days. I specifically think Joe did us all (and Ars's reputation as a result), in dishonestly claiming Müller was “breathless” in noting that the patent had withstood re-examination, and that this represented a potential threat to those infringing on it. That's a cheap shot at best, and a poor substitute for Joe having actually done the legwork to follow the case that he supposedly is interested in enough to post about another's discovery of news about it.

So, I think a false equivalency. Groklaw has steadfastly supported virtually all actions by those who take up the FOSS banner, while Müller has clearly advocated a principled separation of FOSS from infringement of legitimate IP. Tribes versus principles.

(My own interest is in a potential invention that I would love to license to a huge fraction of today's technology devices; there's no way that I could hope or want to start up an industry producing PCs, MP3 players, smartphones, etc., and so the old-school standards of allowing me full rights to negotiate with actual potential implementers, knowing that a knockoff wouldn't steal my discovery away, is a major financial issue. My likelihood of actually producing the invention is irrelevant, merely that if I do, I have a way to get what seems realistic and fair, rather than the zero price that might be in the interest of Mr. Schmidt's billionaire shareholders.)

it's really not clear why this proceeding should be seen as a such a watershed in the wide-ranging patent war between Apple and its two Android-making competitors

Because Apple fanboys hate that Google and Android exist. And Florian Mueller is as anti-Google as they come, as we've learned, so FOSS Patents has no credibility.

It's like quoting the local fanboy!

Fanboys quoting fanboys! What next?

It reminds me a bit of Dick Cheney on the Sunday morning talk show circuit, implicating Iraq for complicity in the 9/11 attacks. A significant part of his argument was that respected news outlets were reporting that evidence revealed Iraqs' role in the attacks, while forgetting to disclose that it was his office that fed the story about this same evidence to the news outlets that he was quoting.

No surprise really as the patent office has been instructed by their bosses in politics and the federal circuit court to give out patents for anything and everything under the Sun.

Citation?

I assume he meant their judicial bosses interpreting the meaning of law from presumed legislative intent, which also happens to neglect the mention of the requirement for promoting progress. The quote can be viewed here: http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty

but only if you DID NOT invent a specific method of "coding" an action in a program for work... so will you forbid your company from patenting "this novel action"?... of course not... it is a badge of success when you get a patent.

...

"software. patent trolls. must. die!!!!

Otherwise you are being disingenuous because if you have created patent through your job you are not going to say "do not Patent it" ... you do not have a choice... it is your company's choice...

No, there really is something pointless about software patents. Trolls are just taking advantage of it for fun and profit to the detriment of creativity and innovation and more importantly the economic waste bring in.

Besides, heuristics, like this one Steve Jobs is particularly proud of it seems, are algorithms which the Supreme Court has already ruled to be NOT patent subject matter (can't recall the case).